Supreme Court Kicks Off Term With Oral Arguments in Five Cases

Last week, the U.S. Supreme Court heard oral arguments in person for the first time in more than 18 months. As a reminder that the country is still in the midst of the pandemic, Justice Brett Kavanaugh was forced to hear oral arguments remotely after testing positive for COVID-19.

The most closely-watched case of the week was U.S. v. Zubaydah, which involves a discovery request made by Zayn al-Abidin Muhammad Husayn (known as Abu Zubaydah), who is currently held at the U.S. detention facility in the Guantanamo Bay Naval Base in Cuba. Abu Zubaydah is seeking to depose two CIA contractors who allegedly supervised his “enhanced interrogation” at secret CIA dark sites in Poland. In seeking to quash the subpoenas, the federal government asserted the state secrets privilege, under which courts must act in the interest of the country’s national security to prevent the disclosure of state secrets by excluding privileged evidence from the case.

The justices must now decide the following question: “Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.”

Below is a brief summary of the other cases before the Court:

Wooden v. United States: The case involves the “different occasions” clause of the Armed Career Criminal Act. The specific question before the Court is whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act.

Mississippi v. Tennessee: The case involves an interstate water dispute between the states of Mississippi and Tennessee. The justices have agreed to decide the following questions: (1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents’ use of a pumping operation to take approximately 252 billion gallons of high-quality groundwater; (2) whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi’s borders; and (3) whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents.

Hemphill v. New York: The case centers of the Sixth Amendment’s Confrontation Clause and its relationship to a rule of evidence known as “door opening,” under which a litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.

The justices will decide whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

Brown v. Davenport: This case asks the Court to determine the correct standard for harmless-error review of state convictions in federal habeas proceedings. In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.” Congress later enacted 28 U.S.C. § 2254(d) (1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test. The justices must now determine whether a federal habeas court may grant relief based solely on its conclusion that the Brecht test is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.